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Thursday, 9 February 2017

When educated Lady can not say that she was deceived by promise of marriage?

On hearing both sides, and on a perusal ofthe entire materials including the deposition given by theprosecutrix and also, the Exts.D1 and D4 documentsadmitted by her during trial, I find the defence version isacceptable, that whatever transpired between theprosecutrix and the accused was purely consensual.Ofcourse, the prosecutrix examined as PW1 has givenevidence in tune with the allegations made in the Ext.P1complaint. An analysis of the evidence given by the lady willshow that the lady had intercourse with the accused onmany occasions at her residence. Even a common lady or anuneducated lady cannot be deceived more than once ortwice on a promise of marriage. PW1 is a well educated ladyhaving a degree in Engineering. It is quite unbelievable that

she could be easily deceived on a marriage promise on manyoccasions. Admittedly, three or four such instances were ather residence, when her parents were away. Much probe isnot required in this case to find that the sexual intercoursewhich the prosecutrix had with the accused on manyoccasions at her house was with her consent. 5. The Ext.D1 is a letter written by the victim tothe lady proposed in marriage to the accused before thefiling of the Ext.P1 complaint. This letter will show clearlythat she had an illicit affair with the accused, and as part ofthis affair and unholy union, she had sexual intercourse withhim on many occasions. Consent for sexual intercourse iswell discernible from the Ext.D1 letter admitted by theprosecutrix. Ext.D4 is the e-mail communication sent by theprosecutrix to the accused after the filing of the Ext.P1complaint. During trial she very well admitted theauthorship of the communication, and also the contensetherein. This will show that she was not in fact taken to anyhotel room, as she would allege in the complaint, and thatshe happened to make a complaint, and even give statement

during investigation only as instructed or tutored by hercounsel. The Ext.D4 communication will convincingly andunearthingly prove that the intimacy or affair between theprosecutrix and the accused was really illicit and unholy, andthat as part of this affair, she had submitted herself to himon many occasions with full consent and will. However,when some difference of opinion cropped up, or when theaccused retracted from the affair for reasons known to themalone, she made a complaint alleging rape. I am wellsatisfied by the Ext.D1 and D4 documents that if at all theprosecutrix had any sexual union with the accused once, ormore than once, it was with her full consent, as part of herunholy union with him. It appears that after the accusedretracted, and decided to marry one Meera, the prosecutrixtried all ways possible to dissuade him and Meera, and whenshe failed in her attempt, she made a complaint allegingrape. In the Ext.D4 communication sent through e-mail shehas even stated that she would come to court and tell thecourt that she was not in any manner sexually abused andexploited by the accused, that she was not at any time taken

to any hotel, and that her union with him was with fullconsent. On an appreciation of the entire evidence includingthe Ext.D1 and D4 documents admitted in clear terms by theprosecutrix, I find that this is a clear case of consent, andthat the sexual intercourse was not at any time vitiated byany false promise. In the above circumstances, a convictionunder Section 376 IPC is not possible at all. I find that theaccused was wrongly found guilty by the court below.IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: MR. JUSTICE P.UBAIDDated:13TH DAY OF JANUARY 2017 CRL.A.No. 578 of 2012 () RATHEESH Vs STATE OF KERALA, The appellant herein challenges the convictionand sentence against him under Section 376 IPC inS.C.No.125 of 2010 of the Court of Session, Ernakulam. Theprosecutrix who made complaint in this case is a welleducated lady aged 27 years. 2. The prosecution case is that under a falsepromise that he would marry her, the accused enticed theprosecutrix, took her to a hotel at Ernakulam where hesubjected her to sexual intercourse at a room with force, andthereafter on three occasions at her residence also he thussubjected the lady to sexual intercourse on a promise thathe would marry her. It is alleged that when he retracted fromthe promise, the prosecutrix made an attempt to commitsuicide on 03.04.2008, and she made complaint allegingrape on 04.08.2008. The complaint was filed before the

Judicial First Class Magistrate's Court-I, Ernakulam. Thelearned Magistrate forwarded the complaint for investigationunder Section 156(3) Cr.P.C. The police registered the crime,and after investigation submitted final report under Sections420, 376, and 306 IPC. 3. The accused appeared before the learnedAdditional Sessions Judge (Adhoc-II), Ernakulam, and pleadednot guilty to the charge framed against him under Sections420, 376 and 306 IPC. The prosecution examined eightwitnesses including the prosecutrix, and proved Exts.P1 toP13 documents. When examined under Section 313 Cr.P.C.,the accused denied the incriminating circumstances, andprojected a defence that this is a false case foisted againsthim due to despair in love. Alternatively, the defence alsoprojected a defence of consent. No oral evidence wasadduced by the accused in defence, but Exts.D1 to D4 wereproved. These documents include a letter written by theprosecutrix to one Meera, who was later proposed to theaccused, and also an e-mail communication sent by theprosecutrix to the accused after the complaint was filed. On

an appreciation of the entire evidence, the trial court foundthe accused guilty under Section 376 IPC. On conviction, hewas sentenced to undergo simple imprisonment for sevenyears, and to pay fine of Rs.10,000/- by judgment dated21.04.2012. Aggrieved by the said judgment of conviction,the accused has come up in appeal. 4. On hearing both sides, and on a perusal ofthe entire materials including the deposition given by theprosecutrix and also, the Exts.D1 and D4 documentsadmitted by her during trial, I find the defence version isacceptable, that whatever transpired between theprosecutrix and the accused was purely consensual.Ofcourse, the prosecutrix examined as PW1 has givenevidence in tune with the allegations made in the Ext.P1complaint. An analysis of the evidence given by the lady willshow that the lady had intercourse with the accused onmany occasions at her residence. Even a common lady or anuneducated lady cannot be deceived more than once ortwice on a promise of marriage. PW1 is a well educated ladyhaving a degree in Engineering. It is quite unbelievable that

she could be easily deceived on a marriage promise on manyoccasions. Admittedly, three or four such instances were ather residence, when her parents were away. Much probe isnot required in this case to find that the sexual intercoursewhich the prosecutrix had with the accused on manyoccasions at her house was with her consent. 5. The Ext.D1 is a letter written by the victim tothe lady proposed in marriage to the accused before thefiling of the Ext.P1 complaint. This letter will show clearlythat she had an illicit affair with the accused, and as part ofthis affair and unholy union, she had sexual intercourse withhim on many occasions. Consent for sexual intercourse iswell discernible from the Ext.D1 letter admitted by theprosecutrix. Ext.D4 is the e-mail communication sent by theprosecutrix to the accused after the filing of the Ext.P1complaint. During trial she very well admitted theauthorship of the communication, and also the contensetherein. This will show that she was not in fact taken to anyhotel room, as she would allege in the complaint, and thatshe happened to make a complaint, and even give statement

during investigation only as instructed or tutored by hercounsel. The Ext.D4 communication will convincingly andunearthingly prove that the intimacy or affair between theprosecutrix and the accused was really illicit and unholy, andthat as part of this affair, she had submitted herself to himon many occasions with full consent and will. However,when some difference of opinion cropped up, or when theaccused retracted from the affair for reasons known to themalone, she made a complaint alleging rape. I am wellsatisfied by the Ext.D1 and D4 documents that if at all theprosecutrix had any sexual union with the accused once, ormore than once, it was with her full consent, as part of herunholy union with him. It appears that after the accusedretracted, and decided to marry one Meera, the prosecutrixtried all ways possible to dissuade him and Meera, and whenshe failed in her attempt, she made a complaint allegingrape. In the Ext.D4 communication sent through e-mail shehas even stated that she would come to court and tell thecourt that she was not in any manner sexually abused andexploited by the accused, that she was not at any time taken

to any hotel, and that her union with him was with fullconsent. On an appreciation of the entire evidence includingthe Ext.D1 and D4 documents admitted in clear terms by theprosecutrix, I find that this is a clear case of consent, andthat the sexual intercourse was not at any time vitiated byany false promise. In the above circumstances, a convictionunder Section 376 IPC is not possible at all. I find that theaccused was wrongly found guilty by the court below. In the result, this appeal is allowed. The appellantis found not guilty of the offence under Section 376 IPC, andaccordingly, he is acquitted of the said offence in appealunder Section 386(b)(i) Cr.P.C. The conviction and sentenceagainst him in S.C.No.125 of 2010 of the court below willstand set aside, and the bail bond, if any, executed by himwill stand discharged. Sd/- P.UBAID,JUDGE